On certification to the Superior Court, Appellate Division.
For reversal and reinstatement -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J.
[82 NJ Page 184] The question before us is whether a criminal defendant is entitled to a new trial solely because his co-defendants at a joint
trial were denied the proper number of peremptory challenges to potential jurors.
A State Grand Jury indicted defendants Robert Ojeda, Alfred Hoffman and Gary Hoffman for conspiracy and Medicaid fraud. The indictment grew out of the Hoffmans' ownership and operation of three nursing homes. Defendant Ojeda was the accountant for the nursing homes and prepared the cost study reports of patient related expenses used to secure payment of Medicaid funds. The State charged that Ojeda prepared, and the Hoffmans signed, reports knowing that they included numerous personal expenses of the Hoffmans as well as other non-patient related expenses.
A joint jury trial was held at which the Hoffmans were represented by one attorney and Ojeda by separate counsel. The subject matter of this appeal is a ruling made at the beginning of the trial. The Appellate Division's unreported opinion summarizes the ruling as follows:
In anticipation of a lengthy trial, it was agreed that a jury of 16 would be empanelled. Before the voir dire examination of prospective jurors commenced, the trial judge determined that one additional peremptory challenge would be allowed for the two extra jurors (i.e. four alternates rather than two). Thus, the State was allowed 21 challenges and each of the two defense attorneys was allowed 11. Objection by counsel for the Hoffmans was entered on the ground that each of the Hoffman defendants was entitled to a minimum of 10 peremptory challenges. The objection was denied. Subsequently, an attempt by counsel for the Hoffmans to exercise a peremptory challenge was denied on the ground that he had exhausted the 11 challenges available to him. Counsel took exception, and counsel for defendant Ojeda then exercised one of his peremptory challenges to excuse the juror. Thereafter, the final two jurors were selected.
At the conclusion of the jury trial all three defendants were convicted of conspiracy. Each defendant was also convicted of various counts of Medicaid fraud.
On appeal, the Appellate Division found no merit in any of defendants' claims of error save one which it concluded required a reversal of the judgments of conviction. The Appellate Division
was satisfied that each defendant had received a fair trial but for the trial ruling which allowed the Hoffmans 11 peremptory challenges jointly rather than 11 each.
The Appellate Division held that under R. 1:8-3(d),*fn1 each defendant was entitled to 10 peremptory challenges and that common legal representation did not affect that right. Citing Wright v. Bernstein, 23 N.J. 284, 295 (1957) and State v. Hammond, 107 N.J. Super. 588, 589 (App.Div.1969), it ruled that the Hoffmans should have been allowed 10 peremptory challenges each and that the denial of that right was prejudicial per se since they had exhausted the 10 joint challenges allowed them. Accordingly, their convictions were reversed and a new trial was ordered.
The Appellate Division also ruled that defendant Ojeda was entitled to a new trial because of the same error despite the fact that he had been granted the correct number of peremptory challenges and had several remaining when selection of the jury was completed. The Appellate Division noted that the curtailment of the Hoffmans' right of peremptory challenge had an effect on the composition of the jury panel which ultimately heard the case. It also referred to the fact that Ojeda had exercised one of his peremptory challenges to excuse a juror whom the Hoffmans had attempted to challenge peremptorily, ...